Consulting Agreement
Exhibit
10.3
This
Consulting Agreement (“Agreement”)
is
made and entered into as of October 30, 2008, by Future Energy Solutions, Inc.,
a New York corporation (the “Company”),
and
Xxxx Xxxxxxxx, Jr., (“Consultant”).
Recitals
A. The
Company is in its development stage as an independent developer of wind turbine
technology.
B. In
connection with its development, the Company wishes to utilize the services
of
Consultant for financial and business advice and operational strategies for
the
Company.
C. Consultant
has substantial expertise in consulting with and providing management advice
to
companies involved in similar business operations in connection with the
formulation of business plans and strategies and analysis of business and
operating procedures.
D. Consultant
and the Company have agreed on the terms and conditions pursuant to which
Consultant will be retained to provide consulting services.
NOW,
THEREFORE,
the
parties agree as follows:
1. Appointment
of Consultant
1.1 Appointment;
Reporting.
By this
Agreement, the Company appoints Consultant, and Consultant accepts such
appointment, to provide advice and consulting services to the Company, in
accordance with the terms and conditions of this Agreement.
1.2 Nature
of Consulting Services.
Consultant is retained to perform the following consulting services (the
“Services”):
(a) To
review
and analyze the current operations of the Company, make recommendations
regarding operations and operational structure and strategies, and prepare
of an
internal budget and projections for the 2008 through 2013 fiscal
years;
(b) To
help
the Company develop sales and marketing strategies;
(c) To
prepare a business plan for the Company, covering, among other things, its
strategic plan, planned operations, industry and competitive review and planned
budget and financial projections;
(d) To
assist
the Company in the preparation of grant applications for the applicable grants
related to new and developing businesses and alternative energy businesses
from
New York State;
(e) To
assist
the Company in the preparation of a loan package for its financing from a
commercial bank or institutional lender; and
(f) To
analyze and provide advice regarding the Company's strategic plan.
The
Company may, at any time, request Consultant to make changes within the scope
of
the Services or to perform extra work.
1.3 Reporting.
Consultant shall provide a detailed, written report of Consultant's advice
and
analysis of the foregoing matters, including specific recommendations for action
to be taken by the Company, and suggestions for implementation, together with
such supporting information and schedules as may be necessary to permit the
Board to evaluate such recommendations. In addition, Consultant shall provide
interim reports at the request of the Company.
1.4 Hours
of Consulting; Personnel; Additional Consultants.
It is
expressly agreed that Consultant will devote a minimum of twenty (20) hours
per
week during the term of this Agreement.
1.5 Status
of Consultant.
Consultant and the Company expressly agree that Consultant is an independent
contractor, and all Services performed under this Agreement are performed by
Consultant as an independent contractor. Consultant shall control the time,
manner, and place of performance of the Services.
1.6 Standard
of Performance.
Consultant shall perform his services and complete his tasks to the Company’s
satisfaction. Consultant shall comply with all applicable federal, state, and
local laws, ordinances, codes, and regulations in performing the
Services.
1.7 Scheduling.
A. The
Consultant will develop and maintain a detailed schedule for completion of
the
Services. The schedule will be a work plan showing activities to be performed
and their sequence. A preliminary schedule shall be submitted to the Company
within ten (10) days after execution of this Agreement for review and
establishment of the level of detail to be included.
B. The
Consultant will submit monthly progress data for the reporting period which
will
include the percentage complete and actual start date and actual finish date
for
all activities worked on by the Consultant during the period. Any changes in
delivery dates will be reported. Other information, such as actual hours
expended, will be furnished monthly, or as requested, by the Company. If
requested by the Company, update meetings will be held to discuss the results
of
schedule analysis and necessary action to meet the requirements of the
schedule.
2. Term;
Termination or Suspension.
A. Except
as
provided below, this Agreement, and the Services to be performed under it,
shall
commence on the date this Agreement is executed by both parties, and shall
continue thereafter through and including September 30, 2009.
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B. The
Company may terminate this Agreement at-will without cause in its sole
discretion.
C. Upon
termination or cancellation of this Agreement, the Company shall have no
liability to Consultant except for charges for Services performed by Consultant
and accepted by the Company prior to termination. The terms and conditions
in
this Agreement that by their sense and context are intended to survive the
performance hereof by either or both parties hereunder shall so survive the
termination, cancellation, or completion of performance of this
Agreement.
D. Upon
completion of Consultant's services hereunder or at such other time as may
be
requested by Company, Consultant shall return to Company all documents, records,
notebooks, including copies thereof, whether prepared by Consultant or others,
in Consultant's possession, and other Company property utilized by Consultant
in
performing the Services.
E. The
Company reserves the right to suspend work on the Services, with or without
cause, in whole or in part, upon giving notice to Consultant. Consultant shall
resume the Services so suspended when directed to do so by the Company. If
only
a portion of the work on the Services is suspended, Consultant shall be
compensated only for Services actually performed during such
suspension.
3. Compensation;
Expenses.
3.1 Consulting
Fees.
As the
sole compensation for the performance of the Services, Consultant shall be
paid
the following amounts:
(a) The
sum
of one-thousand dollars ($1,000) per week for each full week during the term
of
this Agreement during which the Services are performed; and
(b) A
stock
award pursuant to the terms of the Stock Award Agreement attached hereto as
Exhibit
A,
to be
entered into by the parties at the time of entering into this
Agreement.
3.2 Reimbursement
of Expenses.
The
Company shall reimburse Consultant for all reasonable and necessary business
and
travel expenses actually incurred by Consultant in performing the services,
subject to receipt of a written request for reimbursement, accompanied by
appropriate supporting documentation. Consultant may request reimbursement
not
more frequently than once every month during the term of this
Agreement.
3.3 Withholding;
Benefits.
All
fees payable to Consultant under this Agreement shall be made in full, and
without any withholding, deduction, or offset of any state or federal
withholding taxes, FICA, SDI, or income taxes, nor shall the Company be
obligated to pay any of Consultant's employees' taxes. Consultant hereby
covenants and agrees that it shall be solely responsible for all taxes,
withholding, FICA, SDI, and other similar items (both employee and employer
portions) with respect to all fees paid by the Company under this Agreement,
and
agrees to indemnify and hold the Company harmless with respect to such taxes
and
withholding. Neither Consultant nor Principal shall be eligible for, shall
participate in, or shall be entitled to compensation in lieu of any insurance,
benefit, retirement, or other plan or program provided by the Company to its
employees.
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4. Confidentiality;
Non-Solicitation; Intellectual Property.
As a
material inducement to the Company to enter into this Agreement and pay the
compensation set forth in Section 3, the Consultant hereby expressly agrees
to
be bound by the following covenants, terms and conditions:
A. During
the course of the Consultant's relationship with the Company or any of its
affiliates, the Consultant has had, and will have, access to Confidential
Information relating to the Company and its affiliates and their respective
suppliers, partners and customers. The Consultant agrees to keep secret and
retain in strictest confidence all of such Confidential Information, and will
not disclose, disseminate or use such information for the Consultant's own
advantage or for the advantage of any other person or entity other than the
Company in accordance with the terms of the Consultant's employment or
relationship with the Company. In the event disclosure of any such Confidential
Information is required or purportedly required by law, the Consultant will
provide the Company with prompt notice of any such requirement so that the
Company may seek an appropriate protective order prior to
disclosure.
B. In
the
event that the Consultant as part of his activities on behalf of the Company
generates, creates, authors or contributes to any invention, design, new
development, device, product, method or process (whether or not patentable
or
reduced to practice or constituting Confidential Information), any copyrightable
work (whether or not constituting Confidential Information) or any other form
of
Confidential Information relating directly or indirectly to the Company's
business (including anything that has occurred since the first date Consultant
provided services to the Company), the Consultant acknowledges that such
Intellectual Property is the exclusive property of the Company and hereby
assigns all right, title and interest in and to such Intellectual Property
to
the Company. Any copyrightable work prepared in whole or in part by the
Consultant is and will be deemed “a work made for hire” under Section 201(b) of
the 1976 Copyright Act, and the Company shall own all of the rights comprised
by
the copyright therein. The Consultant shall promptly and fully disclose all
Intellectual Property to the Company and shall cooperate with the Company to
protect the Company's interests in and rights to such Intellectual Property
(including, without limitation, providing reasonable assistance in securing
patent protection and copyright registrations and executing all documents as
reasonably requested by the Company, whether such requests occur prior to or
after termination of the Consultant's employment with the Company).
Notwithstanding the date of this Agreement or anything else herein to the
contrary, the provisions of this Section 4 shall be deemed to be effective
as of
and apply to all matters occurring since the first date Consultant provided
services to the Company.
C. As
requested by the Company from time to time for any reason, the Consultant shall
promptly deliver to the Company all copies and embodiments, in whatever form,
of
all Confidential Information and Intellectual Property in the Consultant's
possession or within his control (including, but not limited to, written
records, notes, photographs, manuals, notebooks, documentation, program
listings, flow charts, magnetic media, disks, diskettes, tapes and all other
materials containing any Confidential Information or Intellectual Property)
irrespective of the location or form of such material and, if requested by
the
Company, shall provide the Company with written confirmation that all such
materials have been delivered to the Company.
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D. The
Consultant acknowledges that in the event the Consultant violates any provisions
of this Section 4, in addition to its other rights and remedies, the Company
shall be entitled to injunctive relief without the necessity of proving actual
damages. The Consultant further acknowledges that if any provision of this
Section 4 is held to be unenforceable, the court making such holding shall
have
the power to modify such provision and in its modified form such provision
shall
be enforced.
E. Without
in any way limiting the provisions of this Section 4, the Consultant further
acknowledges and agrees that the provisions of this Section 4 shall remain
applicable in accordance with their terms after the termination or cessation
of
services to the Company or exercise or termination of the Option.
F. “Confidential
Information” means information or material proprietary to the Company or
designated as Confidential Information by Company and not generally known by
non-Company personnel, which the Consultant develops, or of which Consultant
obtains knowledge, or to which the Consultant may obtain access, through or
as a
result of, the Consultant's relationship with the Company (including information
conceived, originated, discovered or developed in whole or in part by the
Consultant). Confidential Information includes, but is not limited to, the
following types of information and other information of a similar nature
(whether or not reduced to writing): discoveries, ideas, concepts, software
in
various stages of development, designs, drawings, specifications, techniques,
models, data, source code, object code, data structures, instruction sets,
documentation, diagrams, flow charts, research, development, training methods,
training manuals, processes, procedures, “know-how”, marketing techniques and
materials, marketing and development plans, customer names and other information
related to customers, price lists, pricing policies and financial information.
Confidential information also includes any information described above which
the
Company obtains from other entities and which the Company treats as proprietary
or designates as Confidential Information, whether or not owned or developed
by
the Company. Notwithstanding the foregoing, information publicly known that
is
generally employed by the trade at or after the time Consultant first learns
of
such information, or generic information or knowledge which associate would
have
learned in the course of similar employment or work elsewhere in the trade,
shall not be deemed part of the confidential information.
G. “Intellectual
Property” shall mean those forms of authorship (as understood from Title 17 of
the United States Code), invention (as understood by Title 35 of the United
States Code) and identification (as understood from Title 15 of the United
States Code Section 1051 et seq., trademarks and service marks) and such other
forms of property rights in ideas, “know how,” inventions, discoveries, or in
their physical embodiments as shall related to or involve the Company's business
or any of its products, services or strategies.
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Intellectual
Property Rights
5. Miscellaneous.
5.1 Entire
Agreement.
This
Agreement, and the Stock Award Agreement and Company’s 2008 Equity Incentive
Plan, constitute the entire understanding between the parties, and supersedes
all prior agreements and negotiations, whether oral or written. There are no
other agreements between the parties, except as set forth in this Agreement.
No
supplement, modification, waiver, or termination of this Agreement shall be
binding unless in writing and executed by all parties to this
Agreement.
5.2 Assignment;
Binding Effect.
Neither
this Agreement nor any rights, benefits, or obligations under it may be assigned
by any party to this Agreement without the prior express written consent of
the
other party. Subject to the foregoing, this Agreement shall inure to the benefit
of and be binding upon all of the parties to this Agreement and their respective
executors, administrators, successors, and permitted assigns.
5.3 Severability.
In the
event any of the provisions of this Agreement are found by a court of competent
jurisdiction to be invalid, illegal, or unenforceable, the validity, legality,
and enforceability of the remaining provisions shall not be
affected.
5.4 Governing
Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York.
5.5 Counterparts.
This
Agreement may be executed in two or more counterparts, which shall together
constitute one and the same agreement.
IN
WITNESS WHEREOF,
the
parties have executed this Agreement as of the date first written
above.
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FUTURE
ENERGY SOLUTIONS, INC.
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/s/
Xxxxxx
X. Xxxxx
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By:
Xxxxxx X. Xxxxx
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Its:
President and CEO
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CONSULTANT
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/s/
Xxxx
Xxxxxxxx, Jr.
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Xxxx
Xxxxxxxx, Jr.
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6
EXHIBIT
A
STOCK
AWARD AGREEMENT
